The Supreme Court

THE STRUCTURE OF THE SUPREME COURT

The original court in 1789 had six justices, but Congress set the number at nine in 1869, and it has remained there ever since. There is one chief justice, who is the lead or highest-ranking judge on the Court, and eight associate justices. All nine serve lifetime terms, after successful nomination by the president and confirmation by the Senate.

The current court is fairly diverse in terms of gender, religion (Christians and Jews), ethnicity, and ideology, as well as length of tenure. Some justices have served for three decades, whereas others were only recently appointed by President Obama. Figure lists the names of the eight justices serving on the Court as of November 2016, along with their year of appointment and the president who nominated them.

A chart titled “Appointments of the Current Supreme Court Justices”. A horizontal timeline runs through the center of the chart. Starting from the left, the first point marked on the line is labeled “Anthony Kennedy, Appointed by Ronald Regan in 1988”. The label is colored blue and red to indicate both liberal and conservative. The second point is labeled “Clarence Thomas, Appointed by George H. W. Bush in 1991”. The label is colored red to indicate conservative. The third point is labeled “Ruth Bader Ginsburg, Appointed by Bill Clinton in 1993”. The label is colored blue to indicate liberal. The fourth point is labeled “Stephen Breyer, Appointed by Bill Clinton in 1994”. The label is colored blue to indicate liberal. The fifth point is labeled “John Roberts (Chief), Appointed by George W. Bush in 2005”. The label is colored red to indicate conservative. The sixth point is labeled “Samuel Alito, Appointed by George W. Bush in 2006”. The label is colored red to indicate conservative. The seventh point is labeled “Sonia Sotomayor, Appointed by Barack Obama in 2009”. The label is colored blue to indicate liberal. The eight point is labeled “Elena Kagan, Appointed by Barack Obama in 2010”. The label is colored blue to indicate liberal. The last point is labeled with an uncolored question mark.

With the death of Associate Justice Antonin Scalia in February 2016, there remain three current justices who are considered part of the Court’s more conservative wing—Chief Justice Roberts and Associate Justices Thomas and Alito, while four are considered more liberal-leaning—Justices Ginsburg, Breyer, Sotomayor, and Kagan (Figure). Justice Kennedy has become known as the “swing” vote, particularly on decisions like the Court’s same-sex marriage rulings in 2015, because he sometimes takes a more liberal position and sometimes a more conservative one. Had the Democrats retained the presidency in 2016, the replacement for Scalia’s spot on the court could have swung many key votes in a moderate or liberal direction. However, with Republican Donald Trump winning the election and the Republicans retaining Senate control, it is likely that the replacement in 2017 will be more conservative.

Image A is of Justice Ruth Bader Ginsburg. Image B is of Justice Anthony Kennedy. Image C is of Justice John Roberts.
Justice Ruth Bader Ginsburg (a) is part of the liberal wing of the current Supreme Court, whereas Justice Anthony Kennedy (b) represents a key swing vote. Chief Justice John Roberts (c) leads the court as an ardent member of its more conservative wing.
Link to learning graphic

While not formally connected with the public the way elected leaders are, the Supreme Court nonetheless offers visitors a great deal of information at its official website.

For unofficial summaries of recent Supreme Court cases or news about the Court, visit the Oyez website or SCOTUS blog.

In fact, none of the justices works completely in an ideological bubble. While their numerous opinions have revealed certain ideological tendencies, they still consider each case as it comes to them, and they don’t always rule in a consistently predictable or expected way. Furthermore, they don’t work exclusively on their own. Each justice has three or four law clerks, recent law school graduates who temporarily work for him or her, do research, help prepare the justice with background information, and assist with the writing of opinions. The law clerks’ work and recommendations influence whether the justices will choose to hear a case, as well as how they will rule. As the profile below reveals, the role of the clerks is as significant as it is varied.

Profile of a United States Supreme Court Clerk

A Supreme Court clerkship is one of the most sought-after legal positions, giving “thirty-six young lawyers each year a chance to leave their fingerprints all over constitutional law.”Dahlia Lithwick. “Who Feeds the Supreme Court?” Slate.com. September 14, 2015. http://www.slate.com/articles/news_and_politics/jurisprudence/2015/09/supreme_court_feeder_judges_men_and_few_women_send_law_clerks_to_scotus.html. A number of current and former justices were themselves clerks, including Chief Justice John Roberts, Justices Stephen Breyer and Elena Kagan, and former chief justice William Rehnquist.

Supreme Court clerks are often reluctant to share insider information about their experiences, but it is always fascinating and informative to hear about their jobs. Former clerk Philippa Scarlett, who worked for Justice Stephen Breyer, describes four main responsibilities:“Role of Supreme Court Law Clerk: Interview with Philippa Scarlett.” IIP Digital. United States of America Embassy. http://iipdigital.usembassy.gov/st/english/publication/2013/02/20130211142365.html#axzz3grjRwiG (March 1, 2016).

Review the cases: Clerks participate in a “cert. pool” (short for writ of certiorari, a request that the lower court send up its record of the case for review) and make recommendations about which cases the Court should choose to hear.

Prepare the justices for oral argument: Clerks analyze the filed briefs (short arguments explaining each party’s side of the case) and the law at issue in each case waiting to be heard.

Research and draft judicial opinions: Clerks do detailed research to assist justices in writing an opinion, whether it is the majority opinion or a dissenting or concurring opinion.

Help with emergencies: Clerks also assist the justices in deciding on emergency applications to the Court, many of which are applications by prisoners to stay their death sentences and are sometimes submitted within hours of a scheduled execution.

Explain the role of law clerks in the Supreme Court system. What is your opinion about the role they play and the justices’ reliance on them?